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OPINION | JOHN BRUMMETT: Indefinite meanness

by John Brummett | March 23, 2021 at 3:01 a.m.

The magic words the weary of Arkansas seek but will not soon hear are "sine die."

That means to adjourn without resumption, which this orgy of meanness that is our state legislative session won't.

Leaders of the two chambers have filed a resolution to meet until the end of April, which is way too long to begin with, then not adjourn, but merely recess indefinitely. That is so that legislators could bring themselves back to Little Rock without having to rely on Gov. Asa Hutchinson--whom they don't much seem to care for anymore--to call a special session.

It's about control. The legislative branch draws its power from being in session. The executive branch can better function administratively while the Legislature is gone.

This Legislature once went along with Hutchinson, but then it "matured," an ironic word for the circumstance.

Conservative Republican legislators got it up to here with Asa going all center-right, tamping down their extreme right-wing instincts, and they said to heck with that, that they had transgender children to abuse and federal money for covid to spend themselves or at least have more say-so about.

When Asa told people to wear masks and right-wing legislators couldn't stop him from being socialist like that against nothing but a bad cold, war was afoot.

Then the absurdly failed Trump administration didn't get the decennial Census done on time. It wanted to keep Democrats from being counted and thus represented. So, the state Legislature discovered this excuse to go home in body April 30 but keep a dark cloud over Little Rock.

The resolution says the Legislature will be in indefinite recess for purpose of reassembling on its own for three pending matters that it cannot reasonably finish at the current time.

One is redistricting, since Census data is said to be unavailable until the end of September. The others are the nature of any virus-related emergency actions the governor might take and the manner he would presume to spend these hundreds of millions Joe Biden and the Democrats just sent.

A couple of points on that:

First, a healthy governor-legislature relationship would permit the legislators to trust the governor to handle the emergency and spending subject to their formal advice, review and outright signoff authority, which they could design and designate for themselves through a representative committee. And it would permit legislators to trust the governor to call them into special session when the Census data came in.

There is no way in the world he wouldn't. Hutchinson is a reasonable and responsible man, even if a lily-livered near-moderate.

Second, there might be legal/constitutional issues here. Probably not, but maybe. Somebody with money and a gadfly streak might want to test it.

In 1979, the Legislature did not adjourn sine die, but instead declared itself in mere recess until the next January, at which time it would perform its authority to refer three proposed constitutional amendments to the voters. A gadfly with a few dollars sued, and won.

The Arkansas Supreme Court found at that time that the Legislature exceeded its constitutional authority by holding over to a year in which it had no convening power the selection of those amendment referrals. It said that a legislature had the power to recess and defer that way if it faced responsibilities it could not perform in the regular session. But it said the three amendments could and should have been chosen in the regular time period.

This resolution invokes that case and asserts that this Legislature simply cannot currently perform its duties by April 30 because the virus emergency order will persist at that time; because specifics on how to spend the new federal manna will be pending, and because there's no way they can jimmy the state's congressional districts to reflect the new Census until they have the numbers.

I'm certain the latter point about congressional redistricting is solid. But I'd personally enjoy a probably losing argument that the virus emergency management and covid relief spending could be handled by April 30 with a law making restrictions and establishing a signoff process.

Hutchinson says he wishes the Legislature would get done by April, but that, if not, he trusts the Constitution will be followed.

The resolution permits legislators to return while in recess to correct errors and do cleanups. Some new idea for bullying transgender children would seem on the face of it not to qualify.

And the resolution declares that new laws without emergency clauses would become law by the standard post-adjournment schedule even in this case of recess on April 30. Maybe someone would want to do some gadfly lawyering on that.

I'm just spitballing. I'm desperate to avoid that dark cloud month after month across our summer of discontent.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected] Read his @johnbrummett Twitter feed.

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